2 justices rip S.A. assistant federal attorney

Comment called racially charged.

Updated 11:57 pm, Monday, February 25, 2013

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2 justices rip S.A. assistant federal attorney

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In a rare move, two U.S. Supreme Court justices Monday called out a federal prosecutor in San Antonio for what they called a racially charged comment he made while cross-examining a black defendant in a drug trial in 2011.

Justices Sonia Sotomayor and Stephen Breyer released the statement as part of the court's decision not to hear the defendant's appeal, making clear that despite the ruling, they didn't tolerate the remark.

The prosecutor, Assistant U.S. Attorney Sam Ponder, told the San Antonio Express-News that the question came as part of establishing the totality of the scenario surrounding a drug deal and wasn't meant to be construed as racially charged or reflective of who he is as a person.

Ponder was questioning defendant Bongani Charles Calhoun about his claim that he did not realize a friend was engaging in a drug deal when they were arrested in 2008.

Calhoun has maintained his innocence, and he argued that he thought he was simply on a road trip when federal agents caught his friend trying to buy cocaine at a San Antonio hotel room.

Sotomayor, joined by Breyer, wrote that Ponder “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation.”

They referenced past court cases in which prosecutors have insinuated that the race of defendants alone proved their guilt.

Calhoun appealed his guilty verdict up to the Supreme Court, arguing that Ponder's question violated his constitutional rights.

The two justices agreed with the majority of the court in declining to hear Calhoun's appeal on procedural grounds but released a separate statement critical of Ponder.

“It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century,” the justices' statement said. “We expect the government to seek justice, not to fan the flames of fear and prejudice.”

“Before the Fifth Circuit, the government failed to recognize the wrongfulness of the prosecutor's question, instead calling it only 'impolitic' and arguing that 'even assuming the question crossed the line,' it did not prejudice the outcome,” Sotomayor wrote. “I hope never to see a case like this again.”

Ponder said he was just trying to put into context for the jury the scenario Calhoun was describing and to point out how his story didn't add up.